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Date: 03-23-2007

Case Style: Norma Fonseca, et al. v. City of Gilroy, et al.

Case Number: H028369

Judge: Duffy

Court: California Court of Appeal, Sixth Appellate District on appeal from the Superior Court of Santa Clara County

Plaintiff's Attorney:

Jim Zahradka and Kyra Kazantzis, Public Interest Law Firm, Law Foundation of Silicon Valley, San Jose, California;

Phyllis S. Katz, CA Rural Legal Assistance, Inc. - Gilroy, CA

Richard A. Marcantonio, Public Advocates, Inc., San Francisco, California

Defendant's Attorney:

Andrew L. Faber, Thomas P. Murphy and Linda A. Callon, Berliner Cohen, San Jose, California

Description:

This is an appeal from a judgment following the trial court's denial of a petition for writ of mandate under Code of Civil Procedure section 1085. Plaintiffs Norma Fonseca and Terry Wilson sued the City of Gilroy and its City Council1 to, among other things, set aside the City's 2002 General Plan on the basis that its housing element does not meet or substantially comply with the requirements of the "Housing Element Law" codified at Government Code sections 65580 through 65589.8.2 On appeal, plaintiffs, who are appellants here, reprise their challenge to the City's 2002 housing element. Specifically, they contend that Gilroy's 2002 housing element: (1) violates section 65583, subdivision (a)(3),3 in that it does not contain an inventory of available residentially zoned land identified by parcel or site, and it also fails to provide the required analysis of these sites; (2) violates former section 65583, subdivision (c)(1)(A), in that it does not identify adequate housing sites that will be made available to meet Gilroy's allocated share of the regional housing need at all income levels for the 2001- 2006 planning period; and (3) violates former section 65583, subdivision (c)(1)(A)(i), in that it does not alternately provide sufficient housing sites that are zoned to permit multifamily residential use "by right" in order to otherwise meet the regional housing need.

Plaintiffs further contend that Gilroy's 2002 housing element violates the "Least Cost Zoning Law," codified at section 65913, et seq., in that it fails to zone sufficient residential sites at appropriate densities to facilitate the development of the regional housing need at each income level - read the lower income levels - during the current planning period.

While many of plaintiffs' arguments concerning the Housing Element Law are logical in terms of the Law's ultimate goals - the promotion and facilitation of affordable housing - these arguments require us to go beyond the stated terms of the applicable statutory language and, in effect, rewrite it. The Legislature made amendments to the Housing Element Law in 2004 after Gilroy's adoption of its 2002 General Plan to read, in essence, as plaintiffs contend we should read the prior law. In other words, plaintiffs' arguments largely point not to legal insufficiencies in Gilroy's 2002 housing element but instead to inadequacies and inefficacies in the prior statutory language, which, by these gaps, failed to adequately facilitate enforcement of the objectives of the Housing Element Law.

As noted, recent statutory revisions appear to have addressed the particular vagaries at issue here. Since 2005, the Housing Element Law has required the detail and specificity, particularly regarding the land inventory and identification of adequate sites to meet the locality's housing needs, which plaintiffs seek to impose on Gilroy with respect to its 2002 housing element. (See §§ 65583 & 65583.2; Stats. 2004, ch. 724, §§ 1, 3.) Plaintiffs nevertheless contend that these statutory changes merely "clarified" existing law, and that we should apply prior law as the revisions now read. In light of the Housing Element Law as it existed in 2002 and the actual language of former section 65583, as well as the boundaries of judicial review that limit our analysis to whether Gilroy's 2002 housing element substantially complies with that statute, we reject plaintiffs' contentions.

We likewise reject their contentions concerning Gilroy's lack of compliance with the Least Cost Zoning Law. In sum, this is so because Gilroy's 2002 General Plan substantially complied with the Housing Element Law that was in effect at the time the Plan was adopted. And Gilroy was not required to rezone (in order to facilitate increased high density housing) in 2002 upon its adoption of that General Plan, or immediately thereafter, as plaintiffs contend. The Least Cost Zoning Law does not set such a deadline and instead contemplates rezoning by a public entity pursuant to its General Plan within the five-year planning period covered by that Plan. Gilroy's Plan sufficiently describes rezoning efforts to be undertaken to accommodate low income housing within this fiveyear period such that it complies with the Least Cost Zoning Law.

* * *

Outcome: The judgment is affirmed.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None



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